infringe the Benowitz patent. It is apparent that machines of similar construction had been in public use for more than two years prior to the application for the said patent, and that the heated tube had been an integral part of such machines. The general teachings of the Goodman patent, and not those of the Benowitz patent, were followed in the construction of the defendants' apparatus.
Conclusions of Law
Claims 1 and 4 of the patent in suit are invalid for the reasons hereinabove stated; the said claims if valid, are not infringed for the reasons hereinabove stated. The relief sought by the plaintiff is, therefore denied.
Patent No. 2,115,967
Findings of Fact
The plaintiff, Moses J. Schifrin, is, and was, the owner of Patent No. 2,115,967, issued on his application, filed on November 8, 1937. The plaintiff, Concord Chenille Co., Inc., was, at the time suit was instituted, the exclusive licensee under the said patent.
It is alleged that claim 1 of the said patent was, and is, infringed by the defendants, who, admittedly are, and have been, engaged in the manufacture and sale of imitation fur fabrics. The said claim defines the invention as follows: "An artificial fur fabric comprising a backing, a layer of curled round chenille completely covering the surface of said backing and secured to said surface by sewing, said chenille contacting throughout its length the said surface in adjacent non-intersecting irregular sinuous fur-like rows, a substantial proportion of the sewing stitches crossing the core of the chenille so as to effectively secure it against displacement on said surface, the fibres of said chenille being pulled down in many places by the sewing stitches so as to produce irregularities in the finished fabric." The said claim is directed to an artificial fur fabric, not only similar to, but identical with, that manufactured and sold by the defendants. It, therefore, necessarily follows that if the claim in suit is valid, it was, and is, infringed by the product manufactured and sold by the defendants.
An examination of the said claim in the light of the prior art, as exemplified in the Romaine patent (No. 1,731,591), the Unger patent (No. 1,889,733), and the Tremblay patent (France -- No. 389,427), discloses complete anticipation. All of the said patents are directed to imitation fur fabrics, and, more particularly, to processes of manufacture. The disclosures of the said prior art patents are clear, unambiguous, and complete, so that persons skilled in the art can follow their teachings without difficulty. The claim in suit is, therefore, invalid because of anticipation.
It clearly appears from the undisputed testimony that artificial fur fabrics, similar in pattern and construction to that described in the Schifrin patent, had been in public use for more than two years prior to the application for the said patent. Such fabrics had been in commercial use in the United States since 1902, if not prior thereto. The manufacturers, among them the present defendants, had been engaged in the manufacture and sale of such fabrics since 1930. The product, to which the claim in suit is directed, was, therefore, not patentable.
It appears from the file wrapper, a certified copy of which is in evidence, that of six claims advanced by the patentee, in his petition to the Commissioner of Patents, four were rejected in their entirety, and were, thereupon, cancelled. When the patent in suit is read and interpreted in the light of the rejected claims and the prior art, it is evident that the claim in suit is limited to the stitch structure, defined in the said claim as follows: "* * *, a substantial portion of the sewing stitches crossing the core of the chenille so as to effectively secure it against displacement on said surface, the fibres of said chenille being pulled down in many places by the sewing stitches so as to produce irregularities in the finished product." This construction conforms in substance to the principal contention of the plaintiff. The absence of invention is clear; the improvement, if any, required nothing more than mechanical ingenuity common to those skilled in the art. It, therefore, necessarily follows that the claim is invalid for lack of invention.
Conclusions of Law
The claim in suit is invalid for the reasons hereinabove stated. The relief sought by the plaintiff is, therefore, denied.
© 1992-2004 VersusLaw Inc.